680 F.Supp. 1577 (CIT. 1988), 85-04-00558, Fabricas El Carmen, S.A., de C.V. v. United States

Docket Nº:Court No. 85-04-00558.
Citation:680 F.Supp. 1577
Party Name:FABRICAS EL CARMEN, S.A., de C.V., et al., Plaintiffs, v. The UNITED STATES, Defendant.
Case Date:February 17, 1988
Court:Court of International Trade
 
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Page 1577

680 F.Supp. 1577 (CIT. 1988)

FABRICAS EL CARMEN, S.A., de C.V., et al., Plaintiffs,

v.

The UNITED STATES, Defendant.

Court No. 85-04-00558.

United States Court of International Trade.

Feb. 17, 1988

Green & Hillman, Richard G. Green and Ben L. Irvin, Washington, D.C., for all plaintiffs other than Derivados Acrilicos.

Page 1578

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Jeanne E. Davidson, Civil Div., U.S. Dept. of Justice, for defendant.

OPINION AND ORDER

RESTANI, Judge:

Defendant moves to vacate the portion of this court's previous decision requiring remand. Fabricas El Carmen, S.A., et al. v. United States, 12 CIT ---, 672 F.Supp. 1465 (1987). Defendant further moves to dismiss this action challenging the final affirmative countervailing duty determination of the United States Department of Commerce, International Trade Administration (ITA). Certain Textile Mill Products from Mexico, 50 Fed.Reg. 10,824 (Mar. 18, 1985). Defendant argues that the results of the first administrative review of this determination, Certain Textile Mill Products from Mexico, 52 Fed.Reg. 45,010 (Nov. 24, 1987), have rendered the remand moot.

FACTS

On October 7, 1987, this court denied certain challenges to ITA's final determination that a certain program bestowed countervailable benefits. 672 F.Supp. 1465. One of the arguments rejected by the court was plaintiffs' contention that losses due to Mexico's exchange rate system either negated any possible basis for finding that the program bestowed a subsidy, or resulted in net subsidy of zero. The remaining issues involved the methods ITA used to arrive at specific amounts of net subsidies, but it does not appear that other methods would have entirely eliminated any finding of net subsidy. Plaintiffs do not now argue that this is a possibility under the court's opinion. With regard to three of plaintiffs' methodology challenges, the court found ITA's determination neither based on substantial evidence nor in accordance with law. Accordingly, the case was remanded to ITA for correction of errors. ITA was ordered to report its results in 45 days.

On November 20, 1987, prior to the time allowed for reporting the remand results, ITA filed the instant motion.

ARGUMENTS

Defendant argues that this court's remand order should be vacated, and this action dismissed, on the ground that "intervening circumstances [ITA's first administrative review of its final affirmative countervailing determination and order] have rendered the remand moot ... [and that] unless vacated, the remand order would require this Court to issue an advisory opinion contrary to Article III of the Constitution." Defendant's Motion for Vacatur of Remand Order and to Dismiss at 1. Defendant explains that

even if the amount of the subsidy in this case were revised upon remand, such a finding would have no practical effect because the adjusted subsidy could not be used for duty assessment or as the deposit rate on future entries. Thus, no entries--present or prospective--can be affected by any change that may result from recalculation of the original duty deposit rate upon remand.

Id. at 2-3. Defendant relies for support of its position, in part, upon the court's opinions in PPG Industries, Inc. v. United States, 11 CIT ---, 660 F.Supp. 965 (1987), Alhambra Foundry v. United States, 10 CIT ---, 635 F.Supp. 1475 (1986) and Silver Reed America, Inc. v. United States, 9 CIT 221, Slip Op. 85-51 (May 1, 1985).

Plaintiffs do not dispute the correctness of the court's prior opinions, but submit that this case is distinguishable in that in the final results of the administrative review ITA has ignored completely the court's instructions in remanding the underlying...

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